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In The Matter Of: 

## SERVED: December 8, 2014 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC ; '-f.

. .:.**·-~** ) ) ) ) ) ) DocketNo. FAA-2013-0291 AIRBORNE MAINTENANCE AND ENGINEERING SERVICES Respondent Case No. 2011S0290032

ORDERRESERVING THE RESPONDENT'S MOTION

FOR SANCTIONS,AND DIRECTING THE PARTIES TO ENGAGE IN A RULE 37DISCUSSION ···, ·- -- . .., ·,_ __·

OnNovember 21,2014, an Order Denying Motion for Suspension ofLitigation, ReExtending Deposition Deadline, and Reconfirming Remaining LitigationDates was filed. OnDecember 2, 2014 the Respondent filed a Motion for Sanctions ("Motion"). As part ofthis Motion, the Respondent seeks exclusion ofevidence, onthe grounds thatthat the FAA has been non-compliant with the court-ordered discovery schedule. OnDecember 5, 2014 the FAA filed a Response to Motion for Sanction ("Response"). As part ofthis Response, the FAA alleges there was good cause for its untimely discovery filing. The FAA also asserts that the Respondent's Motion should be denied infull becausethe Respondent has also failed to comply with the court-ordered litigation schedule. A. BriefDiscussion: The Respondent asserts in its Motion that the FAA's expert disclosure statement, filed thirteen (13) days late on December 1, 2014, was "unexcused." (Motion, 1.) Although itis seeking evidentiary exclusion sanctions, the Respondent acknowledged that ithad notcomplied with the September 30, 2014 Order (paragraph G) and engaged in a Rule 37 conference with FAA counsel. The Respondent explained, however, that it believedthe failure ofthe FAAtomeet its deadline could notbe curedby any Rule 37 discussion (Motion, 2 fn 1). Nevertheless, the Respondent seeks exclusion ofall FAA identified experts, not only because ofthe missed discovery deadline, but also because ofdiscovery "insufficiencies" it alleges exist inthe FAA's late-filed December 1, 2014 disclosure. In Response, the FAA moves for an order denying the Motion in full, because the Respondent failed to comply with the September 30,2014 Order (paragraph G). The FAA acknowledged that its expert disclosure deadline had been late, and that its deadline hadbeen November 19,2014 (Response, 1), butthe FAA explained that its attorney had been called out of the office from November 18, 2014 throughNovember 31, 2014 for a family medical emergency. (Response, 1-2.) The FAA counsel returned to the office onDecember 1, 2014 and sent an email to the Respondentthat same day, in which he explained thathis lack ofaction on the case sinceNovember 18, 2014 was due to a medical emergency. (FAA Exh. F.) In addition, as part ofthe FAA's Response, it asserts that apre-motion discussion withthe Respondent could have resulted in some resolution ofthe discovery discrepancies alleged bythe Respondent. The Respondent is correct thatthe FAA failed to comply withthe court-ordered deadline. However, the FAA is also correct that the Respondent failed to comply withthe court-ordered Rule 37 conference, and that a non-compliantparty mightbe granted excuse from noncompliance, upon a sufficient showing ofgood cause. 1 As previously directed by this court, the parties musttry to amicably resolve their disputes before any Motions regarding discovery are considered. (11/7/13 Order Setting LitigationDates and Procedures, 3**~** D; and 9/30/14 Order Granting/Denying Relief, and Modifying the Litigation Dates and Procedures, 2-3**~** G). This includes (but is not limitedto) discussing whether good cause exists for the FAA's non-compliance withtheNovember 18, 2014 discovery deadline; what specific insufficiencies might exist inthe FAA's late-filed December 1, 2014 disclosure; whether ornotthere is a cure to such alleged insufficiencies; and so forth. Upon conclusion oftheRule 37 discussion, the Respondentmust file a Rule 37(a)(1) declaration as directed in the 9/30/14 Order, ifit seeks to renew any part ofits Motion.

1The FAA's footnote assertion that it should be able to engage in unilateral discovery deadline delays (e.g., delays without notice to, and agreement with, opposing counsel) and, by such non-compliance with court-orders, force the opposing side to spend time and money in filing motions to force compliance viajudicial relief(Response, 2, fn. 6), will not be addressed in this Order. Page 2 of4I , 

### B. Conclusion Afterreviewing all relevant caselaw, regulations, statutory authority, andbeing fully advised; 

### ITIS HEREBY ORDERED: 1. The Respondent's Motion for Sanctions is reserved. 2. The FAA'sresponsive request for an order denying the Respondent's Motion for Sanctions inits entirety (Response, 3-4), for failure ofthe Respondentto engage in a Rule 37 conference and submit a declaration ofcompliance, is denied. 3. Pursuantto the September 30, 2014 Order, page 2-3**~** G, the parties are directedto engage in a Rule 37 Discussion regarding any/all issues regarding such discovery, including (but not limited to) any assertion ofgood cause delay by the FAA for the latefiled December 1, 2014 discovery, as well as any alleged deficiencies in such late discovery disclosure, and whether such deficiencies may be cured. 4. Afterthe Rule 37 Discussion, ifany discovery dispute remains unresolved, the Respondent may renew its Motion for Sanctions upon filing a Rule 37 Declaration pursuantto the September 30, 2014 Order.

Attachment: Service List

Page 3 of4SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY 

### Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2Wl0002



### Mr. Christopher R. Stevenson Complainant's Counsel Federal Aviation Administration ONE COPY



### Office ofthe Regional Counsel, Southern Region P. 

### 0. Box 20636 Atlanta, GA 30320 TEL: 404-305-5200 FAX: 404-305-5223 Mr. Robert P. Silverberg Respondent's Counsel Silverberg, Goldman & 

### Bikoff, LLP Georgetown Place, Suite 120 1101 30th St., N.W. Washington,.DC 20007 TEL: 202-944-3300 FAX: 202-944-3306 Judge J.E. Sullivan US. AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 FDMS No. FAA-2013-0291 (Civil Penalty Action)

2 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.